International Humanitarian Law Divergence

Article by: Lesley Wexler

42 PEPP. L. REV. 549 (2015)

International Humanitarian Law (IHL) influences U.S. national security policy in many ways. Most obviously, the United States may voluntarily accept constraints by ratifying a treaty, implementing necessary changes, and abiding by judicial interpretations of that treaty contrary to executive or congressional preferences. And absent persistent objection, the United States is also bound by customary IHL as well.

This Essay suggests more attention also be paid to a third way in which IHL shapes U.S. national security policy. Even that IHL, which the United States does not accept and may even affirmatively reject, sometimes guides U.S. national security policy. If other countries accept particular IHL treaties, treaty interpretations, or customs that diverge from the United States’ approach, the United States may alter its national security practices. This Essay seeks to describe the international ecosystem in which states engage divergent IHL preferences. Specifically, this Essay focuses on the substantive areas in which divergence with the United States occurs, the constraints other states may deploy to impose or reflect their IHL preferences, and the likely U.S. responses.